Hartman v. Mayor & Council

15 Del. 215

• Court: Superior Court of Delaware
• Decided: February 15, 1894
• Status: Published

Opinion

Cullen, J.,

delivered the opinion of the Court.

This is a certiorari under very peculiar circumstances, and we will not attempt to go into any extended review of the different matters and principles upon which this case rests, but shall merely state the general principles involved, upon which we dismiss these exceptions.

It appears that there was a proceeding originally commenced under an act of Assembly, vesting in the Board of Health of this city certain powers and authority in relation to matters mentioned under their immediate jurisdiction. The result of the action of the Board of Health is not a judgment. This is a power that is conferred and which is acted on by the Board of Health by force of the police power, which is part of the sovereignty of the State. The State may delegate those powers, and it has in this case delegated to the Board of Health the power, upon complaint coming before them, to determine whether oí not a thing is deleterious or injurious to the community generally, and they may examine that matter and inquire into and investigate it. And upon this investigation, if the person upon due notice does not remove that which is deleterious—you may call it a nuisance—then the Board of Health have the right to remove or abate the nuisance.

It is contended that there was no notice given in this case before they proceeded. Every person, of course, has his right to a day in court, but the Board of Health act upon these matters like a Grand Jury, for instance, where there is a charge against a person—on one side of the matter. When the matter is determined by them it is not a judgment; they simply determine that a certain matter is a nuisance. Then when it is so determined it is their duty to notify the party that a nuisance exists on his premises, and that he is required to remove it within a certain time, which is by them specified. The act does not prescribe a particular time in which it must be done, because the time it takes to remove it must necessarily depend upon the nature and character of the nuisance to be abated. Five days might be enough in one case, while it might take two, three, five or six months in another.

When it is determined by the Board of Health, acting under the police power vested in them by the Legislature or the sovereign power of the State, that a certain thing is a nuisance, it becomes their duty for the first time to notify the party of the fact that a nuisance exists on his place—that is, notice is given to him of that fact; it is nothing more or less in our judgment than that “ a nuisance exists on your place, and we require you to remove it in so many days.” The party’s rights have not been invaded; it has been a mere matter of investigation. And then he may, if he see fit, have his day in court. He has an impartial, full and complete remedy. For the first time the case enters into trial when both parties are represented. He may appeal to the Chancellor for an injunction to stay the action, and commence an action whereby his rights may be determined by proceedings in chancery. If he sees fit to allow the matter to go on, and if the Board of Health have violated the powers vested in them in removing the matter, then they become personally liable.

Were it otherwise, what would become of the community, and what would police regulations amount to ? Parties must act in an emergency; if the Board of Health act in an emergency, still there is time left for the opposite party, if he wishes, to contest their action. Their action is not a legal judgment such as is contemplated under the law, to which a certiorari at common law may issue.

We think, therefore, under the circumstances, that this is not a case in which a certiorari would lie, and therefore dismiss the exceptions.